News, Views and Analysis

Public discrimination is never trivial

Lunch-counter won’t take your order because you’re Black? Hey, there’s another one just down the street. Sales clerk won’t serve you because you “look gay?” No problem, one of the other staff will be glad to look after you—can you come back in twenty minutes?

Live and let live, right?

Wrong. What kind of public policy would permit these forms of discrimination by public commercial enterprises? Why should some people, just by virtue of who they are, have to slalom around obstacles to have lunch or buy a purse?

Reasonable accommodation is always a matter of debate, and let those discussions continue by all means. But let’s get one thing straight. If you choose to open a business, a public commercial enterprise, then you don’t discriminate. Period. Every citizen has the right to expect, and should receive, equal treatment when they go shopping for goods or services.

That’s the law.

So here’s where the accommodation lies. If you have religious or any other objections to treating customers or clients equally, then choose another line of work. You don’t see Jehovah’s Witnesses working in blood banks or Jews in the pig-butchering business or (now) Saskatchewan Baptists in the marriage trade.

And I’d go further: if your own beliefs endanger others, or put them to unnecessary expense, then the accommodation being demanded is patently unreasonable. If you want to be a doctor, but you don’t want to scrub because baring your arms offends your modesty, go into engineering or law instead. If the sight of women working out offends you, then tint your own windows.

This is all just common sense, something the Toronto Star ends up championing, if not very convincingly, in the case at hand. Reasonable accommodation cries out for it. But reasonable accommodation, by that very standard, shouldn’t require everyone else to defer to the point that discrimination, once outlawed in the public sphere, is allowed to sneak back in through another door. And surely something as fundamental as a demand for equal treatment in a place of business should not be shrugged off as petty, or countered by sleazy insinuations that ulterior motives are in play.

Indeed, the motives of any of the parties are immaterial. In the Deep South, it happened to be racism; in the case before us, a sexist religious injunction. But for those at the receiving end of discrimination, the reasons for their exclusion weigh somewhat less heavily than the act of exclusion itself. Whatever the motives, they’re just as excluded.

Is the refusal of a haircut—or a meal at a lunch-counter—an earth-shaking event? Of course not, although the humiliated individuals affected might feel some disagreement. But we need to keep our eyes on the public policy implications of creating space for these minor acts of discrimination. And those implications, as the civil rights movement should have taught us, are anything but trivial.